Sciabacucchi v. Barton ( 2022 )

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 IN RE ZILLOW GROUP, INC. Master File No. C17-1568-JCC SHAREHOLDER DERIVATIVE 10 LITIGATION. ORDER 11 12 13 14 15 This matter comes before the Court on Plaintiffs’ unopposed motion to substitute party 16 plaintiff (Dkt. No. 89). Having thoroughly reviewed the motion and the relevant record, the 17 Court GRANTS the motion for the reasons explained below. 18 This is a consolidated shareholder derivative action brought for the benefit of Nominal 19 Defendant Zillow Group, Inc., against current and former members of Zillow’s board of directors 20 and executive officers, seeking to remedy Defendants’ alleged breaches of fiduciary duties and 21 unjust enrichment. (See Dkt. No. 36-1 at 2.) On August 31, 2021, Plaintiff Melvyn Klein’s 22 counsel filed a notice of suggestion of Mr. Klein’s death under Federal Rule of Civil 23 Procedure 25(a)(1). (Dkt. No. 78.) In December 2021, Mr. Klein’s daughter, Cindy Maloney, 24 was appointed as executrix of Mr. Klein’s last will and testament by the Nassau County 25 Surrogate’s Court. (Dkt. No. 89 at 2.) Plaintiffs’ counsel now moves to substitute Mr. Klein with 26 Ms. Maloney as a party plaintiff in this matter. (Dkt. No. 89 at 1.) 1 If a party dies and the claim survives, the Court may order substitution of the proper 2 party. Fed. Rule. Civ. P. 25(a)(1). A motion for substitution may be made by any party or by the 3 decedent’s successor or representative. (Id.) If the motion is not made within 90 days after 4 service of a statement noting the death, the action by or against the decedent must be dismissed. 5 (Id.). So, in deciding a motion to substitute under Rule 25(a)(1), a court must consider whether: 6 (1) the motion is timely; (2) the pleaded claims survive; and (3) the person being substituted is a 7 proper party. See Fed. Rule Civ. P. (25)(a)(1). 8 “The substituted party steps into the same position as the original party.” Hilao v. Estate 9 of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). “Rule 25(a) should be applied flexibly and 10 liberally to permit substitution of the party or parties who . . . would adequately represent [the 11 decedent’s] interests.” In re Baycol Prods. Litig., 616 F.3d 778, 789 (8th Cir. 2010). 12 Here, the motion was timely filed1, it is uncontested that Mr. Klein’s claim survived his 13 death, and declaratory evidence establishes Ms. Maloney as a successor in interest to Mr. Klein. 14 (See Dkt. Nos. 90-1 (decree admitting Mr. Klein’s will to probate), 90-2 (certificate of 15 appointment of executor naming Ms. Maloney).) The Court thus FINDS that Ms. Maloney is a 16 properly substituted party. 17 Accordingly, Plaintiff’s motion to substitute (Dkt. No. 89) is GRANTED. Cindy 18 Maloney is hereby SUBSTITUTED for Plaintiff Melvyn Klein. The Clerk shall update the ECF 19 docket header and case caption accordingly. 20 DATED this 21st day of March 2022. A 21 22 23 John C. Coughenour 24 UNITED STATES DISTRICT JUDGE 25 1 The Court granted an extension for Plaintiff Klein to move to substitute the party plaintiff, 26 (Dkt. No. 83), and the pending motion falls within the new deadline, (See id.; Dkt. No. 89.)